Objection is also made to the exclusion of certain evidence to explain the contract of settlement, as to the effect to be given the transfer of a certain mortgage. It appears from appellee's brief, and is not disputed by appellant, that the court did not attach any weight to such mortgage as a separate consideration for appellant's promise. Other errors are complained of, but they are not such as to affect any substantial right of appellant. Judgment affirmed. (229 Mass. 485) TOWN OF BROOKLINE v. LORING. SAME v. WHIDDEN. (Supreme Judicial Court of Massachusetts. Norfolk. Feb. 28, 1918.) 1. APPEAL AND ERROR 687 REVIEW ACCEPTANCE OF FINDINGS OF MASTER. Where the case was referred to a master, and there is no report of the evidence on appeal, his findings of fact must be accepted as true. 2. MUNICIPAL CORPORATIONS 658-RIGHT OF TOWN IN STREET-RIGHTS AS ABUTTING OWNER. A town has no right in its governmental capacity to the land occupied by a street, but it has rights as a municipal corporation owning land abutting on the street. 3. EASEMENTS 12(1)-GRANT OF EASEMENT IN STREET TO TOWN. Where the owner of land opened a street running down to a pond with another land owner, each contributing half of the 50 feet of the street's width, and the street, declared to be for the benefit of the owner of a parcel of land later conveyed to the town, was laid out, and the indenture creating the easement of the street was recorded, the street being used for travel of all kinds for many years, the easement in the street passed by grant to the town, which could acquire such easement by grant as well as by prescription or reservation. 4. EASEMENTS 30(1)-EXTINGUISHMENT EASEMENT OF TOWN IN STREET AS PRIVATE PROPRIETOR. Where the superintendent of streets of a town, of his own motion, or by the direction of the selectmen, placed a barrier across the entrance to a street running down to a pond to protect the town in its governmental capacity from actions for damages for injuries received by travelers, such action by the town did not extinguish its easement in the street, as an abutting private proprietor, later acquired by it when it received a conveyance of abutting land for a public playground. 5. EASEMENTS 30 (1) NONUSER. ABANDONMENT Mere nonuser, even if complete and continued, does not necessarily defeat an easement. 6. EASEMENTS 29-LICENSE TO OBSTRUCT IRREVOCABLE CHARACTER. A general parol license by the owner of the dominant tenement to obstruct an easement when executed by the owner of the servient tenement upon his own land becomes irrevocable. 7. EASEMENTS 29-RELINQUISHMENT of or LICENSE TO INTERFERE WITH EASEMENT ACTION BY TOWN OFFICERS. Where a town, as a private abutting proprietor, had an easement in a street, and two town officers, at the request of another abutting proprietor, laid curbing in the street, the step did not constitute a license by the town to the other proprietor to interfere with the town's easement; since the town's easement by grant, a right in real estate, could not be relinquished or extinguished by the unauthorized act of any town officer. 8. EVIDENCE 83(2)-PRESUMPTIONS - AUTHORITY OF SELECTMEN AND SUPERINTENDENT OF STREETS. A selectman and superintendent of streets of a town cannot be presumed to have any authority respecting an easement of travel owned by the town as appurtenant to land purchased for a playground. 9. EASEMENTS 29-STREETS LICENSE TO INTERFERE. One owning property on a street, over which a town, as owner of an abutting public playground, had a license of travel, is not protected in his obstruction of the street by any license from the clerks or officials of the town to construct his building in the street, or by the fact that when he applied for permits he had some general talk with the town engineer and one of the town selectmen. 10. EASEMENTS 58 (2) CROACH UPON WAY. RIGHT TO EN way, in which the public and the town had an Abutting owners had no right to narrow a easement of travel, by encroachments. 11. EASEMENTS 60-MANDATORY INJUNCTION-OBSTRUCTION OF STREET. which the town has an easement of travel, will Private owners, abutting on a street over be compelled by mandatory injunction to remove their obstructions of the street, they having obstructed it when under no misapprehension as to their rights and those of the town. Appeal and Exceptions from Superior Court, Norfolk County; Christopher T. Callahan, Judge. Suits by the Town of Brookline against Atherton Loring and Renton Whidden. From a decree for plaintiff in the first case, defendant appeals, and after decree for plaintiff in the second case, defendant excepts. Decree in the first case ordered affirmed, and decree in the second case ordered reversed, and new decree directed to be entered. Wm. D. Turner, of Boston, for plaintiff. Whipple, Sears & Ogden, of Boston, for defendant Loring. Gaston, Snow & Saltonstall, of Boston (Thomas Hunt, of Boston, of counsel), for defendant Whidden. RUGG, C. J. [1] These are suits in equity whereby the plaintiff seeks to have removed obstructions placed by each of the defendants in a private way known as Essex street in the town of Brookline. The plaintiff, as grantee in deeds of two parcels of land, one called the Amory playground and the other Mason square, asserts proprietary ownership of rights of way in Essex street. The case was referred to a master, whose findings of fact must be accepted as true since there is no report of the evidence. Summarily stated, the material circumstances are that in 1827, by indenture duly executed and recorded, Ebenezer Francis and David Sears, being owners of large tracts of adjoining land, laid out along their boundary line a new road fifty feet wide, each contributing one-half the required land. The side of the granted premises." By will Sears gave the "fee of the streets and squares 1 have laid out and opened on my estate" to his children and their issue "in trust that the same shall be kept open forever for ornament and use as streets and squares only and for the benefit of all residents * contiguous to said streets and description of the way, thrice repeated in as and if extended southerly from such juncthe indenture, was that it extended from tion. The premises were conveyed with the Brighton road "southerly about one hundred right "so far as the grantors have the power and fifty (150) rods until it comes to the to grant the same, to use said Freeman pond." The recital in the indenture is that street and Essex street for all purposes for the way is for the mutual benefit and com- which public ways are commonly used in mon use of Sears and of Francis as owners said town" and subject to the agreement of of tracts of land (including the several par- 1827 between Francis and Sears. This land cels owned by the parties hereto) and their was owned at the time of the indenture in respective heirs and assigns, and of all per- 1827 by Sears. A part of it was conveyed sons going to or from their respective tracts of by Sears to his daughter in 1845 and it land or any part thereof. This new way, bounded on a line corresponding to the center known as Essex street, was shown as ex- line of Essex street as laid out in the indentending to and beyond the pond in a series ture of 1827 as if extended across the pond of published or recorded plans by different southerly to Beacon street. The remainder civil engineers between 1849 and 1885. That was devised to his daughter by will probated part of Essex street between Brighton road in 1871 by a description bounding on Freeand Ivy street became a public highway and man street and Essex street and their interrespecting that no question now is raised. section. Both these tracts were conveyed The controversy centers about that portion by the heirs of the daughter in 1903 to the extending southerly from Ivy street and be grantors in the deed to the town "with the yond the pond. The estates of the defendants benefit of and subject to such rights and are on the southerly side of Ivy street on op- easements as may now be in force respecting posite corners of Essex street. This portion | the laying out and use of a street fifty feet of Essex street extending southerly from wide called Essex street along the easterly Ivy street was a well defined, ordinary country road, and long prior to the ownership of the parties to the present suit had been put in a condition safe for travel for persons and vehicles. It was open and dedicated to public use. At or near the pond it joined Freeman street. On one side Essex street was marked by a high hedge, along which next to the street was a well-defined squares. raised walkway suitable for use by pedestrians; on a part of the other side, was a fence of stone posts and iron chains. The shore line of the pond was not immovable, but varied somewhat in location by reason of swamp, drainage, wet and dry seasons, filling, and perhaps other causes. The street was used by people both on foot and in vehicles until 1876, when the superintendent of streets of the town, by reason of an accident to a traveller at the pond, placed a barrier at or near Ivy street, effectually preventing vehicles from entering Essex street, but not seriously obstructing travel on foot. Thereafter vehicles did not use that portion of Essex street, but it continued to be used at all times by pedestrians resorting to the pond or its shores or near by land for sports or picnicing. Freeman street to its junction with Essex street at the pond also was open and used as a private way for a considerable traffic by vehicles from about 1858 to 1876. In 1890 the officers of the town granted a license for the erection of electric light poles in the street, which were placed in accordance therewith. * * [3] The report of the master appears fairly susceptible of the construction that he finds that the right to use Essex street as created by the indenture of 1827 attached as an easement to the land included within the purchase by the town for the playground. It appears to have been contiguous at one corner. But however that may be, from the facts found by him it is plain that it was the intention of the parties to the indenture that the easement thereby created should be appurtenant, not alone to adjacent lands, but to the "several parcels owned by the parties thereto." Graham v. Walker, 78 Conn. 130, 61 Atl. 98, 2 L. R. A. (N. S.) 983, 112 Am. St. Rep. 93, 3 Ann. Cas. 641; Boland v. St. John's Schools, 163 Mass. 229, 39 N. E. 1035. It follows as matter of law that an easement to use the way laid out by the indenture of 1827 was created and used, and that that easement passed by grant as appurtenant to the playground land when purchased by the town. The easement was created by written instrument, recorded in the registry of deeds. It is defined thereby. It was declared to be for the benefit of the [2] The town has no right in its govern- owner of this parcel of land among others. mental capacity to the locus of the street, By its record all the world was given notice but it has rights as a municipal corporation of the way and of the persons for whose beneowning land abutting on the street. Those fit it was established. The way physically rights arise from its purchase in 1903 of a was made manifest on the face of the earth. tract of land for use as a public playground It was used for travel of all kinds without bounded on Freeman street and on its junc-question for many years prior to 1876. The tion with Essex street and on Essex street easement was coextensive with the way as and like cases where by exercise of the power laid out and attached to its full width of fifty |tral Wharf v. India Wharf, 123 Mass. 567, feet. Fox v. Union Sugar Refinery, 109 Mass. 292. Essex street is referred to by name as being a boundary of that portion of the playground lot devised by Sears to his daughter in 1871. The easement passed by grant to the town. N. E. Structural Co. v. Everett Distilling Co., 189 Mass. 145, 75 N. E. 85; Burnham v. Mahoney, 222 Mass. 524, 111 N. E. 396; Ralph v. Clifford, 224 Mass. 58, 60, 112 N. E. 482; Gorton Pew Fisheries Co. v. Tolman, [5] There has been no abandonment of the 210 Mass. 402, 97 N. E. 54, 38 L. R. A. (N. S.) easement. It was used all the while by pe882. The town could acquire such easement | destrians without substantial, interruption. by grant as well as by prescription or reser- It was only the use by vehicles which was vation. Commonwealth v. Low, 3 Pick. 408. suspended. Mere non-user, even if complete [4] It is contended that the easement of and continued, does not necessarily defeat an the town has been extinguished. That con- easement. Willets v. Langhaar, 212 Mass. tention is grounded in part upon the action of 573, 99 N. E. 466; Parsons v. N. Y., N. H. & the superintendent of streets of the town, H. R. Co., 216 Mass. 269, 103 N. E. 693; Boseither of his own motion or by direction of ton & Albany R. R. v. Reardon, 226 Mass. the selectmen, in placing a barrier across the 286, 292, 115 N. E. 408. entrance to Essex street from Ivy street in [6-8] The fact is undisputed that each of 1876 and maintaining it for many years the defendants have placed obstructions of a thereafter. At that time the playground lot permanent character within the limits of the was in private ownership, the town not ac- way. But it is contended that this was by quiring its title by deed until 1903. The virtue of a license by the town executed by closing of the entrance was therefore the act the defendants and hence irrevocable. Doubtof a public officer in the exercise of govern- less a general parol license by the owner of mental functions. It was not the conduct of the dominant tenement to obstruct an easea private proprietor. It was done because of ment when executed by the owner of the some accident by a traveller in the pond. servient tenement upon his own land, becomes Authority was conferred by Gen. Sts. c. 43, § irrevocable. The easement is then to that 83 (now R. L. c. 48, § 99), upon selectmen, extent modified. Boston & Providence R. R. whenever demanded by the public safety, to v. Doherty, 154 Mass. 314, 317, 28 N. E. 277. cause the entrances of private ways entering The facts upon which this principle is inupon and uniting with public highways to be voked are that the defendant Whidden built closed. If this was not done, the town was a substantial wall nineteen feet into the limliable for damages arising from defects as if its of Essex street, and that thereafter "the it were a public way. This act of the super- town by direction of the superintendent of intendent of streets did not affect as matter streets and a member of the board of selectof law the private rights in the way. As men having in charge the particular highway matter of fact, according to the findings of district in question, at the request of Whidthe master, it did not seriously interrupt the den and at the cost of the town, placed curbuse of the way by travellers on foot. It sim-ing on said Ivy street * * ply prevented vehicles from going upon it. across and into Essex street to the same exextending But it did not extinguish private easements. tent as the wall with the usual curve in the Its design merely was to protect the munici- curbing as it rounded in and on Essex street, pality from liability to actions for damages. and that the superintendent of streets, when The easements in Essex street were valuable asked by a contractor employed by the deproperty rights. They could not be destroy- fendant Whidden if he could lay a granolithed or expropriated by public authority with-ic sidewalk over this nineteen foot projection out compensation. The statute under which into Essex street, replied, "Yes." The dealone the town officers had a right to erect fendant Whidden also graded his lot and the barrier makes no provision for the pay-planted shrubs and vines substantially over ment of damages. The initial erection of the barrier grew out of the desire and right to I protect the town in its governmental capacity from actions for damages for injuries received by travellers on the dangerous private way. The continued maintenance by its appropriate public officer after the purchase by the town of the playground lot was presumably for the same purpose. The easement acquired by the town by grant has not been affected. It was at most merely suspended as to the entrance of vehicles from or into Ivy street while the barrier was maintained. " this space for a considerable distance down Essex street. This finding by the master as matter of construction does not mean that the town in its corporate capacity with due formality voted that these things might be done. It simply means that the curbing was laid by direction of the superintendent of streets and the single selectman and the expense paid out of the town treasury. The laying of the curbing was not done by Whidden, but by two town officers at his request. That did not constitute a license by the town to interfere with the easement owned by it. so lightly surrendered. The town was the owner of the easement by grant. That was a right in real estate. It could not be relinquished or extinguished by the unauthorized act of any town officer. Franklin Savs. Bank v. Framingham, 212 Mass. 92, and cases collected at page 95, 98 N. E. 925. A selectman and superintendent of streets cannot be presumed to have any authority respecting an easement of travel owned by a town as appurtenant to land purchased for a playground. There was no vote of the town conferring authority upon any officer to extinguish or modify the easement. The case at bar bears no resemblance to Canny v. Andrews, 123 Mass. 155, where an easement in connection with the use of a chimney was held to be abandoned when the city had purchased the dominant estate with building on it for the purpose of widening a street, and in execution of that purpose had taken down the building, thereby rendering the building on the servient tenement to which the chimney was attached unfit for occupation, and appropriated the greater part of the lot to the widening of the street and allowed the small remnant of the lot to lie idle for six years before selling it. There the laying out of the street, which, by its inevitable consequence, wrought the abandonment of the easement, was an authorized act, of public authority. selectmen. Manifestly he is not protected by any license for reasons already stated. [10, 11] The defendants severally were aware of the existence of the indenture of 1827 and were advised in a general way as to the state of their record title with reference to the easements in Essex street when they built their obstructions. They had no right to narrow the way by encroachments. Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113. They must be held in substance and effect to have made these expenditures without excuse and under no misapprehension. There is no estoppel which prevents the town from exercising its rights. There is no suggestion that prompt action was not taken when the matter came to the attention of the proper officers of the town. The cases at bar come within the authority of numerous decisions where a mandatory injunction has been issued ordering defendants to remove the obstructions. The principles which govern courts of equity have been amplified frequently and need not be repeated. Curtis Mfg. Co. v. Spencer Wire Co., 203 Mass. 448, 89 N. E. 534, 133 Am. St. Rep. 307, and cases collected. Kershishian v. Johnson, 210 Mass. 135-139, 96 N. E. 56, 36 L. R. A. (N. S.) 402; Szathmary v. Boston & Albany R. R., 214 Mass. 42, 100 N. E. 1107; Stevens v. Rockport Granite Co., 216 Mass. 486, 493, 104 N. E. 371, Ann. Cas. 1915B, [9] The defendant Loring asserts an exe- 1054. The decree in the Loring Case was cuted license from the circumstances before right and is affirmed with costs. The decree narrated as to the defendant Whidden, and in the Whidden Case was erroneous. It is from the fact that he procured the usual reversed.. A new decree is to be entered dipermits for constructing his building, and recting him to remove the obstructions plactold the clerks or officials of the town that he ed by him upon Essex street and enjoining proposed to put it "in any position he want-him from further obstructing it, with costs ed to on the street" and had some general to the plaintiff. talk with the town engineer and one of the Ordered accordingly. (283 Ill. 51) and the February term of the circuit court of PEOPLE ex rel. HAMILTON v. IRWIN, Cir- De Kalb county convened February 28th. cuit Judge. (No. 11223.) (Supreme Court of Illinois. Feb. 20, 1918. Rehearing Denied April 3, 1918.) The 90 days allowed for preparing and filing the bill of exceptions expired March 20, 1916. The February term of the De Kalb county CRIMINAL LAW 1092(10)-BILL OF EXCEP-circuit court continued until after May 20, TIONS-TIME FOR FILING.. Where bill of exceptions was not presented within the statutory time and no application for extension made at a term of court during such period, the judge cannot be compelled to thereafter sign the bill and order it filed nunc pro tunc. Original mandamus proceedings by the People, at the relation of Bert Hamilton, against Clinton F. Irwin, Circuit Judge. Petition dismissed, and writ denied. A. G. Kennedy, of De Kalb, for relator. Lowell B. Smith and Edward M. Burst, both of Sycamore, for respondent. FARMER, J. This is an original proceeding in mandamus by relator, Bert Hamilton, against respondent, Clinton F. Irwin, judge of the circuit court of De Kalb county, to compel the respondent, as such judge, to sign a certain bill of exceptions taken of the evidence in the cause tried before him in the circuit court of that county wherein the relator was convicted of the crime of rape and sentenced to the penitentiary at Joliet for the term of 15 years. By stipulation entered into between the parties, a reference of the cause to a jury or commissioner to try the issues of fact was waived and the cause submitted to the court upon the pleadings and bill of exceptions attached to the petition as an exhibit, by which it is agreed that all matters and things shown and contained in the statement of facts shall be given the same force and effect as if established by the sworn testimony of witnesses or other competent evidence on a trial before a jury or a commissioner upon proper reference by this court. 1916; but court was not continuously in session. There were sessions on eight days of the term prior to March 11th, but they were not consecutive days. On March 11th an adjournment was taken until March 25th. Respondent was the presiding judge throughBetween March 11th and out the term. March 25th respondent was presiding and holding court in the circuit court of Cook county, sitting in the city of Chicago. On March 23d, which was three days after the 90 days allowed for presenting and filing the bill of exceptions had expired, counsel for relator presented to respondent at the courtcircuit court of De Kalb county, setting out house in Chicago a motion entitled in the that the bill of exceptions had not been fully prepared by the official reporter, that the time for filing the same would expire before the next coming in of the court, and asking that the time for presenting and filing the bill of exceptions be extended for a period of 30 days. Respondent indorsed on said motion that the time for filing the bill of exceptions was extended 30 days and signed his name as presiding judge of said court. On the night of March 23d counsel for relator telephoned respondent at his home in Elgin asking permission to change the date of the motion and order from March 23d to March 11th, and respondent consented that might be done. Presumably this change was desired for the reason that it had been ascertained the circuit court of De Kalb county had adjourned on March 11th to March 25th, and for the further reason that the 90 days' time for the filing of the bill of exceptions had expired on March 20th. The motion and order were not filed until April 19th. The facts disclosed by the record are: That relator, Bert Hamilton, had been previously We deem it unnecessary to set out the furconvicted of the crime of rape in the circuit ther proceedings had in an attempt to procure court of De Kalb county and a judgment the signing of the bill of exceptions by the rendered on the verdict of the jury sentenc- respondent after March 23d and up to May ing him to the penitentiary at Joliet for the 20th, when the motion and order of March term of 18 years. A writ of error was sued 23d, bearing date of March 11th, were strickout to review the judgment of conviction, en from the files and the respondent refused and at the June, 1915, term of this court said to sign the bill of exceptions. The time fixed judgment was reversed and the cause remand- (90 days) for filing the bill of exceptions ed for a new trial. People v. Hamilton, 268 had expired March 21st, and that time had Ill. 390, 109 N. E. 329. Relator was again not been extended by any order of the court, tried at the October, 1915, term of the cir- nor had any application been made to the cuit court of De Kalb county, found guilty, court for any extension of time. Independent and by the judgment of the court rendered of the fact that the circuit court of De Kalb December 21, 1915, he was sentenced to the county was not in session when the applicapenitentiary for a term of 15 years. At the tion for an extension of time was made, time this judgment was rendered an order March 23d, and the application was presentwas entered by the court (respondent here) ed to respondent while sitting as a judge of giving the relator 90 days in which to pre- the circuit court of Cook county, in the city pare and present a bill of exceptions. The of Chicago, the 90 days' time given for October term adjourned February 5, 1916, the filing of the bill of exceptions had expir For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |